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Quality Code Publishing, LLC - QCP - Interagency Agreement - (2)
PROOFOF "AN ORDINANCE OF THE CITY ON PUBLICATION 'BEACH, G '.BEACH, CALIFORNIA, AMENDING VARIOUS SECTIONS OF THE'HUN- TINGTON 'BEACH MU- NICIPAL CODE (HBMC) STATE �/p CALIFORNIA) ND ZONING AND SUB- DIVISION.,i� ®� �sA�'$6mfM (ZSO) T ORDINANCE (ZSO) TO GLOBALLY CHANGE' DEPARTMENT HEAD TITLES OF CITY SS. ADMINISTRATOR, DEPUTY CITY'ADMINIS- COUNTY OF ORANGE ` POLIO AND CHIEF G 6� 1 I� tl�16,� ) POLICE; AMENDING HBMC SECTION .1.01.020 TO IDENTIFY QUALITY CODE PUB' LISHING AS PUBLISHER am a citizen of the United States and a OF 'THE. HBMC.; AMENDING HBMC SEC- resident of the County of Los Angeles; I TION 1.01.040 TO RE- FLECT THE UPDATED am over the age of eighteen years, and CITY CHARTER; AND, ADOPTING STANDARD not a party to or interested in the notice EDITORIAL PROCE- DURES AS RECOM- published. I am a principal clerk of the MENDED BY QUALITY CODE HUNTI NGTON BEACH SYNOPSISLlerk's �' T>�ity'Clerk's Office > INDEPENDENT, which was adjudged a entered, into an inter agency agreement with newspaper of general circulation 'on' Quality Code Publishing,, LLC (QCF)for internet September-29, 1961, case. A6214, and based codification of 'the City's Municipal and - June 11, 1963, ease A24831; for the Zoning Codes, including Lin'•ks to crosS'- City of Huntington Beach, County of references to the Cali- e+ fornia Government Orange, and .the State of California.' Code,and the CodeAlert Attached to this Affidavit is a true and Ordinance Tracking er-. vice that notifies ussers when a particular sec- complete copy as was printed and tion of the code has been amended, added published on the following date(s): or repealed. Before im- plementing this service, ,, certain technical, non Thursd9 ay April 25 2013 Substantive changesi t 9 the HBMC,.as recom- mended by QCP were approved and adopted in this ordinance. PASSED AND ADOPTED I certify (or declare) under penalty by the City.Council of the.City of Huntington Beach at a regular Aril of perjury that the foregoing is true 2013inbyheld the followi g roll call vote: and correct. AYES: Sullivan, Hardy, Harper,, Boardman, Carchio, Shaw; Katapodis NOES-None ABSTAIN:None Executed on May 1 , 2013 THE FULL TEXT OF THE ORDINANCE.IS AVAIL ABLE IN THE at Los Angeles, California CLERK'S OFFICE. CITY This ordinance is ef- fective 30 days after, adoption. ' CITY OF HUNTINGTON BEACH CITY OF HUNTINGTON, 2000 MAIN STREET HUNTC'A 926 BEACH, BEACH cA ezeas ,0/t/ LEGAL NOTICE, 714-5�6-5227 JOAN L.FLYNN,CITY Signature ORDINANCE NO.3976 1 1 CLERK. Adopted by the City Cuncil Published H.B. Indepen- _on APRIL 15,2013 dent 4/25/13 Dept.ID CK 13-D03 Page 1 of 2 Meeting Date:4/1/2013 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION x MEETING DATE: 4/1/2013 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Joan L. Flynn, CIVIC, City Clerk. PREPARED BY: Joan L. Flynn, CIVIC, City Clerk SUBJECT: Approve for Introduction Ordinance No. 3976 updating the Huntington Beach Municipal Code (HBMC) and Zoning and Subdivision Ordinance (ZSO) to reflect certain technical, non-substantive changes identified by Quality Code Publishing's Standard Editorial Procedures Statement of Issue: The City Clerk's Office entered into an interagency agreement with Quality Code Publishing, LLC (QCP) for internet-based codification of the City's Municipal and Zoning Codes, including links to cross-references to the California Government Code, and the CodeAlert Ordinance Tracking Service that notifies users when a particular section of the code has been amended, added or repealed. Before this service can be implemented, certain technical, non- substantive changes to the HBMC as recommended by QCP must be approved. Financial impact: None. Recommended Action: Approve for Introduction Ordinance No. 3976, "An Ordinance of the City of Huntington Beach, California, amending various sections of the Huntington Beach Municipal Code (HBMC) and Zoning and Subdivision Ordinance (ZSO) to globally change department head titles of City Administrator, Deputy City Administrator and Chief of Police; amending HBMC Section 1.01.020 to identify Quality Code Publishing as publisher of the HBMC; amending HBMC Section 1.01.040 to reflect the updated City Charter; and, adopting Standard Editorial Procedures as recommended by Quality Code Publishing." Alternative Action(s): Do not approve request, and provide direction to staff. Analysis: The Huntington Beach City Clerk's Office is one of few remaining offices in the state of California to codify City ordinances in-house. From FY 2010/11 to FY 2011/12 the City Clerk's Office staffing level was downsized by 50% and the Clerk began to consider alternatives to streamline certain services. In August 2011, the City Clerk's Office submitted a Technology Project Business Plan to the Information Services Department that provided rationale for outsourcing the City's codification services. Following submittal of the Plan, the City Clerk submitted an inquiry to all California Clerks about their knowledge and/or experience with a qualified, codification specialist. The City Clerk received a large number of responses, the majority recommending QCP. The Clerk met with three codification services reps to glean information on their services. In October 2011, the City Clerk's office entered into an interagency agreement with QCP for codification services. Item 8. - I HB -284- Dept. ID CK 13-003 Page 2 of 2 Meeting Date:4/1/2013 Before the City transitioned from an in-house to internet-based codification service, QCP conducted and prepared a Code Analysis and Legal Review of both the HBMC and ZSO dated February 9, 2012 (Aft 2). While the document was being reviewed by the City Attorney, the City Clerk met with QCP to review and approve QCP's Standard Editorial Procedures and alert them of Department Head titles that needed to be globally changed in the Code. In October, the City Attorney provided a written response to QCP's Code Analysis and Review that recommended certain Titles (Title 2. Administration and Personnel; Title 3. Revenue and Finance; Title 5. Business License and Regulations; and, Title 9. Public Peace, Morals and Welfare) be reviewed by affected Department Heads for their opinion on implementing QCP's suggested modifications (Aft 3). The information was shared at the October 23, 2012, Executive Team meeting and no feedback has been returned. If affected Department Heads feel there is further action necessary to implement QCP's suggestions, they will be presented to the City Council at a future date. Due to size, a legislative draft of the HBMC and ZSO is not attached to this report, but is available in the Office of the City Clerk. Standard editorial (style/formatting) procedures identified in Exhibit A of the proposed Ordinance include: • Capitalization • Numerals • Outlining and Cross-Referencing (subsections, paragraphs, subparagraphs) • Definitions (listed in alphabetical order) • Section History Notes (added at the end of each full section) • Changing Language to be Gender Neutral • Establishing Hyperlinks to City Zoning Maps • Section and Subsection Catchline Formatting (consistency between HBMC and ZSO) Environmental Status: None. Strategic Plan Goal: Improve the City's infrastructure Attachment(s): 1. Ordinance No. 3976, "An Ordinance of the City of Huntington Beach, California, amending various sections of the Huntington Beach Municipal Code (HBMC) and Zoning and Subdivision Ordinance (ZSO) to globally change department head titles of City Administrator, Deputy City Administrator and Chief of Police; amending HBMC Section 1.01.020 to identify Quality Code Publishing as publisher of the HBMC; amending HBMC Section 1.01.040 to reflect the updated City Charter; and, adopting Standard Editorial Procedures as recommended by Quality Code Publishing," including Exhibit "A" Standard Editorial Procedures, and legislative draft 2. Quality Code Publishing Code Analysis and Review dated February 9, 2012 3. RLS 12-3524 Response dated October 15, 2012 HB -285- Item 8. - 2 ATTACHMENT # 1 Item 8. - 3 HB -286- ORDINANCE NO. 3976 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH, CALIFORNIA AMENDING VARIOUS SECTIONS OF THE HUNTINGTON BEACH MUNICIPAL CODE (HBMC) AND ZONING AND SUBDIVISION ORDINANCE (ZSO) TO GLOBALLY CHANGE DEPARTMENT HEAD TITLES OF CITY ADMINISTRATOR,DEPUTY CITY ADMINISTRATOR AND CHIEF OF POLICE; AMENDING HBMC SECTION 1.01.020 TO IDENTIFY QUALITY CODE PUBLISHING AS THE PUBLISHER OF THE HBMC; AMENDING HBMC SECTION 1.01.040 TO REFLECT THE UPDATED CITY CHARTER; AND ADOPTING STANDARD EDITORIAL PROCEDURES AS RECOMMENDED BY QUALITY CODE PUBLISHING WHEREAS, the City of Huntington Beach Municipal Code ("Code") was reviewed by Quality Code Publishing, which maintains and publishes the Code; and The City Council wishes to update the Code to make certain technical, non-substantive changes identified by Quality Code Publishing as well as the City's staff, and This update is necessary to streamline and clarify certain provisions of the Code in an effort to promote ease of use by City residents and staff; and The revised Code will protect the public health, safety and welfare by ensuring the Code provides for the sound and orderly administration of the City's rules and regulations, NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. The term"City Manager" shall replace each use of the term "City Administrator" in the Code. SECTION 2. The term"Assistant City Manager" shall replace each use of the term "Deputy City Administrator" and"Deputy City Manager" in the Code. SECTION 3. The term"Police Chief' shall replace each use of the term"Chief of Police" in the Code. 1 13-3670/93156 Ordinance No. 3976 SECTION 4. Section 1.01.020 of the Code is hereby amended to read as follows: 1.01.020 Adoption. Pursuant to the provisions of Article V, section 500 of the Charter of the city of Huntington Beach, there is hereby adopted the "Huntington Beach Municipal Code," as published by Quality Code Publishing Company, Seattle, Washington,together with those secondary codes adopted by reference as authorized by the Charter of the city of Huntington Beach, save and except those portions of the secondary codes as are deleted or modified by the provisions of the Huntington Beach Municipal Code. SECTION 5. Section 1.01.040 of the Code is hereby amended to read as follows: 1.01.040 Codification authority. This code consists of all the regulatory and penal ordinances and certain of the administrative ordinances of the city of Huntington Beach, codified pursuant to the provisions of Article V, section 500 of the Charter of the city of Huntington Beach. SECTION 6. The City of Huntington Beach adopts"Standard Editorial Procedures" as recommended by Quality Code Publishing, a copy of which is attached hereto as Exhibit"A" and incorporated by this reference as though fully set forth herein. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on April 15, , 2013. e ayor INITIATED AND APPROVE) : APPROVEq AS TO FORM: t1� 1 City Cle � q City A'fto ey C REVI AND APPROVED: ATTEST: I�( ty Manager Vty Clerk 2 13-3670/93156 Greinance No. 3976 Exhibit "A? QUALITY CODE PUBLISHING STANDARD EDITORIAL PROCEDURES These editorial procedures are generally derived from the Associated Press (AP) style handbook. The City should carefully review these guidelines and amend them or add to them as needed. A. Capitalization 1. Federal,state, county and city officers and agencies are capitalized. Examples: a. Federal: "Internal Revenue Service" "Federal Communications Commission" b. State: "State Board of Education" "State Treasurer" C. County: "County Board of Health" "County Auditor" d. City: "City Clerk,""Mayor" "Planning Commission" 2. Whenever the words "federal," "state," "county" or "city" appear alone, and not as part of the complete title of an officer or agency,they will not be capitalized. B. Numerals Numbers one through nine will be written out.Number 10 and greater will be expressed as numerals.Excep- tions: numbers in tables,boundary descriptions,dates,times, fractions or decimals. Examples: seven days 80 feet $253.00 15% 7:00 p.m., 8:00 a.m. March 24, 1994 0.86 feet south 56°45'61" Ordinance No. 3976 Exhibit "A" C. Outlining and Cross-Referencing Whenever a code section, because of its length, requires a logical division into lettered and numbered parts, the following system of lettering,numbering, and indentation will be used: A.,B.,C., etc. will indicate subsections,the first level of division. 1.,2., 3., etc. will indicate paragraphs,the second level of division. a., b., c., etc.will indicate subparagraphs,the third level of division. i., ii., iii.,etc. will indicate subparagraphs,the fourth level of division. When referencing section divisions,the italicized terms will be used, as in such references as"subparagraph a of this paragraph," "paragraph 1 of this subsection" or "subsection A of this section." The same cross- references may also be expressed numerically as in "subparagraph 12.04.030(A)(1)(a)," "paragraph 12.04.030(A)(1),"or"subsection 12.04.030(A)." General references to sections, titles, chapters, etc.will not be capitalized, when used in such expressions as "this section," "this subsection," "this title," this chapter," but the words will be capitalized when part of a complete reference such as"Section 12.04.030 of this chapter,""Title 21 of this code," or"Chapter 12.04 of this title." D. Definitions In sections that contain lists of definitions, individual definitions will not be lettered or numbered. Defini- tions will simply be set out in alphabetical order as in this example: "Bicycle parking zone"means that space reserved exclusively for the parking of bicycles. "Block"means one side of any street between the next intersecting streets. "Curb" means the lateral boundary of the roadway whether such curb is marked by curbing construc- tion or not. Rationale for this editorial policy: Typically, sections that list defined terms are often amended.If defined terms are not assigned subsection letters or numbers, new definitions may be inserted into the section in al- phabetical order without having to renumber or reletter subsequent definitions. E. Section History Notes Currently the code has ordinance history notes inserted at the end of subsections, at the end of section catch- lines, in table entries, at the beginning of chapters, and so on. There are numerous citations. We suggest the more standard style of legislative history notes at the end of each full section.It's cleaner and ultimately less confusing. Is it OK for us to compile history notes only at the end of sections? We would list the ordinances in the order of their adoption, the earliest one first, as in this example: (3334-6/97; 3885-8/10). The section history note would document all ordinances that have amended each section, either partially or in its en- tirety. Those interested in more detail can refer to the code's ordinance list for the specific actions taken by ordinances listed in each section history note. Ordinance No. 3976 Exhibit "A" F. Changing Language to be Gender Neutral We will make the entire code gender neutral. Examples: "He" to "he or she," as in "The City Manager shall prepare the budget annually and submit it to the City Council,and he or she shall be responsible for its administration after adoption. "His," "him"or"himself'to be"his or her,""him or her" or"himself or herself," as in"The City Manager may designate in writing a qualified administrative officer of the City to perform his or her duties during his or her temporary absence. "Policeman" to "police officer," "fireman" to "firefighter," "councilman" to "councilmember," "chairman"to"chairperson,""flagman"to"flagger,"etc. G. Zoning Maus The zoning titles include a number of zoning maps. Are these to be included in the republished code?If so, we will need good quality, up-to-date electronic copies. We can also establish hyperlinks to city zoning maps if provided their URLs. Go to http://gcode.us/codes/sacramento/ and click on "Maps related to the code"on the left side of the screen to see how this can work. H. Section and Subsection Catchline Formatting Formatting for section catchlines and subsection catchlines differ between the main code (Titles 1-18) and the zoning titles (20-25). Should we maintain these separate styles or follow one kind of formatting for all titles? See attached PDF labeled"Catchline Formatting"for examples. ► If you have concerns about any of QCP's editorial procedures, please bring them up so that we may arrive at an editorial style that conforms to the city's wishes. ► The city representative's signature below confirms the city's understanding and approval of the edito- rial procedures described herein. Ordinance No. 3976 Exhibit "A" The city approves the following editorial procedures: A. Capitalization:.....................................................................................................................[]yes []no Amendments: B. Numerals:............................................................................................................................[] yes [] no Amendments: C. Outlining and Cross Referencing........................................................................................[] yes []no Amendments: D. Definitions...........................................................................................................................[] yes [] no Amendments: E. Section History Notes.........................................................................................................[] yes [] no Amendments: F. Changing Language to be Gender Neutral..........................................................................[] yes [] no Amendments: G. Zoning Maps.......................................................................................................................[] yes [] no Amendments: H. Section and Subsection Catchline Formatting....................................................................[] yes []no Amendments: Signature& Title Date City Ord. No. 3976 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a Regular meeting thereof held on April 1,2013, and was again read to said City Council at a Regular meeting thereof held on April 15,2013, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Sullivan, Hardy, Harper, Boardman, Carchio, Shaw, Katapodis NOES: None ABSENT: None ABSTAIN: None I,Joan L.Flynn,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on April 25,2013. In accordance with the City Charter of said City �r - 1V':W1JVS W, )— Joan L. Flynn,City Clerk Mfy Clerk and ex-officicPClerk Senior Deputy City Clerk of the City Council of the City of Huntington Beach, California Legislative Draft 1.01.020 Adoption. Pursuant to the provisions of Article V, section 500 54-3 of the Charter of the city of Huntington Beach, there is hereby adopted the "Huntington Beach Municipal Code," as published by Quality Code Beef Publishing Company, Seattle, Washington, together with those secondary codes adopted by reference as authorized by the Charter of the city of Huntington Beach, save and except those portions of the secondary codes as are deleted or modified by the provisions of the Huntington Beach Municipal Code. 1.01.040 Codification authority. This code consists of all the regulatory and penal ordinances and certain of the administrative ordinances of the city of Huntington Beach, codified pursuant to the provisions of Article V, section 500 54-3 of the Charter of the city of Huntington Beach. 3 13-3670/93156 ATTAC H M E N T #2 CODE ANALYSIS AND REVIEW FOR THE CITY OF HUNTINGTON BEACH CALIFORNIA FEBRUARY 09, 2012 %AL,I-FY DE flUBLISHING 801515th Avenue N.W. Suite 1 Seattle,Washington 98117 800.328.4348 www.qcode.us Huntington Beach, California Page 1 xB _293_ Item 8. - 10 Code Analysis and Review For Huntington Beach, California SPECIAL, NOTE: This Code Analysis and Review has been prepared by the consulting legal editorial staff of Quality Code Publishing Company for use by the City Attorney of Huntington Beach, California. It should be thoroughly reviewed. It has been prepared as a research and issue spotting tool to assist the City Attorney and should not be relied upon by City Officials as a substitute for the City Attorney's legal advice. Before the City takes any action with respect to any of the comments contained in this report, the City Attorney should be consulted. The Huntington Beach Municipal Code is abbreviated and herein referred to as "the Code" or"HBMC" throughout this report. References to titles and chapters in this report refer to the titles and chapters of the Huntington Beach Municipal Code. Huntington Beach, California Page 2 Item 8. - 11 HB -294- TITLES 1. General Provisions 2. Administration and Personnel 3. Revenue and Finance 4. (Reserved) 5. Business Licenses and Regulations 6. (Reserved) 7. Animals 8. Health and Safety 9. Public Peace, Morals and Welfare 10. Vehicles and Traffic 11. (Reserved) 12. Streets and Sidewalks 13. Public Property 14.Water and Sewers 15. Oil 16. (Reserved) 17. Buildings and Construction 18. (Reserved) Zoning & Subdivision Ordinances 19. (Reserved) 20. General Provisions 21. Base Districts 22. Overlay Districts 23. Provisions Applying in All or Several Districts 24. Administration 25. Subdivisions Huntington Beach, California Page 3 HB -295- Item 8. - 12 GENERAL COMMENTS Fine for Misdemeanors. Throughout the Code, reference is frequently made to the fine for a misdemeanor not to exceed five hundred dollars and/or imprisonment in jail. California Government Code § 36901 provides: The city legislative body may impose fines,penalties, and forfeitures for violations of ordinances. It may fix the penalty by fine or imprisonment, or both. A fine shall not exceed one thousand dollars ($1,000). Imprisonment shall not exceed six months. Accordingly, the City may, if it wishes, increase the monetary penalty for a misdemeanor to $1000. The City may also state the imprisonment time as six months in accordance with state law. For your convenience, we have also noted these suggested changes, where applicable, under the specific subsections at issue. Huntington Beach, California Page 4 Item 8. - 13 HB -296- TITLE 1: GENERAL PROVISIONS Chapter 1.01 Code Adoption Note: The City may wish to change the publishing company in HBMC § 1.01.020 from"Book Publishing Company" to "Quality Code Publishing LLC." Chapter 1.04 General Provisions Note: The City may wish to consider adding a definition to HBMC § 1.04.010 stating the definition for time calculation of the word"day" (e.g., calendar versus business) for clarification and guidance in any and all time references within the Code. Chapter 1.18 Administrative Citations Note: The City may wish to consider expounding upon what is a"special circumstance" sufficient to warrant citation cancellation as it is referenced in HBMC § 1.18.040(c)(1). The City may also wish to specify how one can make the request and query whether it is similar to the Preliminary Review described in HBMC § 1.18.090. Huntington Beach, California Page 5 HB -297- Item 8. - 14 TITLE 2: ADMINISTRATION AND PERSONNEL Chapter 2.08 City Manager Notes: HBMC § 2.08.050 (Absence) describes the power of the City Manager to designate any officer of the City to serve as acting City Manager during any "temporary absence or disability" of the City Manager. The California Fair Employment and Housing Act (FEHA), California Government Code § 12900 et seq., and the federal Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §12101 et seq., prohibits employers from discriminating against person with disabilities in all aspects of employment. Employers are legally required to enter into reasonable accommodation discussions with all qualified employees (or applicants) in order to allow the employees to perform the essential functions of the position with or without reasonable accommodations. We recommend that the City considering revising this section in conformity with state and federal disability discrimination laws. Chapter 2.52 Police Department Notes: 1. HBMC §2.52.070 (Discipline). HBC §2.52.070 provides that police officers are subject to call by the Police Chief at "any time during the night and day." The City may wish to review this section to confirm that the 24/7 requirement is in compliance with the California Labor Code wage, hour, working conditions and overtime pay provisions and any applicable collective bargaining agreement. The City may also want to consider revising this section to include the following language which may assist in limiting its potential risk for liability: " ... subject to call by the Police Chief at any time during the day or night, and as consistent with applicable laws and terms of the collective bargaining agreement." (emphasis supplied). For relevant legal guidance,please see California Labor Code §§500-558: working hours (§510, work in excess of 8 hours per day, 40 hours per week is subject to overtime pay); (§511, allowable alternate workweek schedules and overtime pay); (§514, §§510 and 511 do not apply if valid collective bargaining agreement provides for wages, hours, conditions and premium wage rates); (§515, Industrial Welfare Commission can exempt executive, administrative, and professional employees from overtime); (§550, definition of"day's rest"); (§551, entitled to one day's rest in seven); (§552, no employer cause employee to work more than 6 days in 7 days); (§554, §§551 and 552 do not apply to any cases of emergency or work performed in the protection of life or property); (§555, §§550, 551, 552 and 554 apply to cities). For additional references of interest, see also California Labor Code §§1171 through 1206 (wages, hours, and working conditions) and §1900 (city employees whose work hours exceed 120 hours per week are entitled to be off duty at least 3 hours per 24-hour period for procuring meals). Huntington Beach, California Page 6 Item 8. - 15 HB -298- 2. HBMC §2.52.100 (Reserve police force—Eligibility). This section states that members of the reserve police force "shall be between the ages of twenty-one (21) and fifty (50) years old, residents of the City, shall be of good character and shall have no physical disabilities." The age restrictions and reference to physical disability could potentially raise issues related to discrimination on the basis of age or disability. Whether or not these laws apply depend, in part, upon the status of the members of the reserve police force—are they volunteers or employees? Though HBMC §2.52.090 provides that the reserve police force "shall be a volunteer organization," we have found federal guidance that warrants the City's and the City Attorney's further review of the issue. As is discussed in further detail below, due to the alleged potential for exposure of liability, we highly recommend that the City review these provisions with the City Attorney to evaluate their compliance with federal law (Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA)) as well as the California Fair Employment and Housing Act (Government Code §§12900-12906). The ADEA prohibits discrimination against individuals who are 40 years or older. The ADA prohibits employment discrimination against a"qualified individual with a disability". In most circumstances, an individual is only protected if s/he was an"employee" at the time of the alleged discrimination, rather than an independent contractor, partner, or other non-employee. A threshold question is whether or not the members of the reserve police force are employees or volunteers. Volunteers are generally not considered employees unless the individual receives benefits such as a pension, insurance, etc. Below is an excerpt from the EEOC Compliance Manual, Section 2-III Covered Parties, paragraph"c'. c. Volunteers Volunteers usually are not protected "employees."However, an individual may be considered an employee of a particular entity if, as a result of volunteer service, s/he receives benefits such as a pension, group life insurance, workers'compensation, and access to professional certification, even if the benefits are provided by a third party. 73 The benefits constitute "significant remuneration"rather than merely the "inconsequential incidents of an otherwise gratuitous relationship.' 74 'Exemp/e CP was terminated-from herposition.as,a probationary volunteer firefighter; after shefa�led an iagility,testShe alleges that the test'has a,disparate impact one women Respondent claims that,CP was not an employee;and, therefore, not protected by Title!W1 State Urou deswolunteer firefighters up to $400/month in state retirement benefits,(after five years of ervice), death and survivors benefits; rou life�_insurance disabihtand�rehabilitation�benefits "health care benefits and �� 9 p�.,_ ,�,. l .. ;:; ' - , tuition reimbursement for courses/n emergency medical`andfire service techrnques These benefits area"significant remuneration"sufficient to create an employment relationship.betty ee n CP and Res ondent , i 'p p "N _ If a reserve police force member is deemed an employee of the City, then the City may not discriminate against him/her on the basis of age,unless it can establish that the age limit is a bona fide occupational qualification to become a member of the reserve police. A"bona fide occupational qualification (BFOQ)" is an employment qualification that relates to an essential job duty and is reasonably necessary for the operation of the business. Huntington Beach, California Page 7 HB -299- Item 8. - 16 If the EEOC or another federal body were to consider the reserve police force members employees of the City, then the prohibition against them from having any physical disabilities has a strong potential to violate federal and state disability discrimination laws. Questions that may warrant further legal analysis and review by the City Attorney may include the following: ➢ Within the meaning of the ADA, is the person an employee? ➢ If the person is an employee, is he/she qualified with or without the provision of a reasonable accommodation? and ➢ Can the person perform the essential functions of the job, with or without reasonable accommodation? The City might want to consider revising this section. For example, in Long Beach, the City Municipal Code does not identify the eligibility requirements (e.g., see Long Beach Municipal Code §§2.15.060 and 2.15.070). The EEOC's Compliance Manual on its website at www.eeoc.gov is a helpful resource for employers in reviewing coverage issues under the federal age and disability discrimination statutes (e.g., ADEA and ADA). Chapter 2.1.04 Advisory Board on the Handicapped Notes: Enacted in 1979, we strongly recommend that the City update their terminology in this Chapter and reconsider how they describe the eligibility requirements for membership on the board. For example: • Instead of using the word"handicapped,"use "disabled" or"disability." • Instead of the current board member eligibility criteria(e.g. one blind person, one person in a wheelchair, one deaf person), indicate that membership will be representative of identified disability groups. Please see sample language below from two California cities that have disability advisory commissions—Sacramento and Long Beach—paying particular attention to Sacramento's Disabilities Advisory Commission: Huntington Beach, California Page 8 Item 8. - 17 HB -300- ➢ Sacramento, CA Municipal Code—Disabilities Advisory Commission Link to Municipal Code: (http://gcode.us/codes/sacramento/) Chapter 2.53 DISABILITIES ADVISORY COMMISSION 2.53.010 Commission established. The city of Sacramento Disabilities Advisory Commission is hereby established. (Ord. 2001-050 § 1 (part)) 2.53.020 Definitions. As used in this chapter, the following words and phrases shall have the meaning given them in this section, unless the context clearly requires otherwise: "ADA Coordinators"means the city employee(s) designated by the city manager, who shall be primarily responsible to provide staff support to the commission. "Americans with Disabilities Act" or"ADA" means the Americans with Disabilities Act of 1990 (Public Law 101-336) (42 USCA Section 12101 et seq.), as amended from time to time. "City"means the city of Sacramento. "City council"means the city council of the city of Sacramento. "Commission"means the Sacramento Disabilities Advisory Commission. "Developmental disability"means any condition, such as mental retardation,including a disabling condition found to be closely related to mental retardation, epilepsy, cerebral palsy, spina bifida, organic brain syndrome or specific learning disabilities that limits a major life activity. "Developmentally disabled" shall not include a disorder or condition that is solely physical in nature. "Fair Employment and Housing Act" or "FEHA" means California Government Sections 12900 et seq., as amended from time to time. "Major life activity" shall mean a function such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. "Mayor"means the mayor of the city of Sacramento. "Mental disability"means any psychological disorder or condition such as emotional or mental illness that limits a major life activity. "Mental disability" does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. "Physical disability" shall have the meaning attributed to it by Government Code Section 12926, as amended from time to time. "Reasonable accommodation" shall have the meaning attributed to it by Government Code Section 12926, as amended from time to time. "Sensory disability" means a physical condition that impairs the body's visual system or auditory system and limits a major life activity. (Ord. 2001-050 § 1 (part)) 2.53.030 Purposes of commission. The commission is established for the purpose of providing advice and recommendations to the mayor and city council on strategies and policies designed to ensure and enhance the city's compliance with the Americans with Disabilities Act, the California Fair Employment and Housing Act, and Title 24 of the California Code of Regulations. (Ord. 2001-050 § 1 (part)) Huntington Beach, California Page 9 HB -301- Item 8. - 18 2.53.040 Powers and duties of commission. The powers and duties of the commission shall be as follows: A. To serve as an advisory body to the city regarding compliance with federal and state disability laws. The commission shall not advise the city concerning litigation or administrative proceedings to which the city is a party; B. To review policies, programs and activities within the city as they affect persons with disabilities; C. To recommend procedures for city employees with disabilities to request and receive reasonable accommodations; D. To provide information, referral and technical assistance to the city in matters pertaining to disability issues; E. To establish a liaison with the city's ADA coordinators to assist with policies, procedures and programs as they relate to federal and state disability laws. (Ord. 2001-050 § 1 (part)) 253�050 C©mmssion membership. The commission shall be compnsed of nine members who rendrthYn the city Sacramento, appointed by the mayor witlapproval by a mad©city of the city council The c inmissi©nos membershipashall be re-AMpresentative of ifferent d!'gddihty groups tn�cl id ng, bi t xii�t lanatted to physJcal, sensoiy developrrientaland mental disabilrties� ppomtees shad"haue ex}enence witlidssabl�tyissues, lcnowleclge�or experienceuwth disablitya�sueh as AIDAir Title 24of the Ca=hforniaCode of Regulations ®rcl 2001 450 § l (part) 2.53.060 Term of office. Members of the commission shall serve a term of three years. In order to establish staggered terms, the initial appointments of each member may vary between one and three year terms as determined by the mayor with approval by a majority of the city council. No member shall serve for more than two consecutive terms. In the event a vacancy occurs, the mayor, with the approval of a majority of the city council, shall appoint a successor to serve the unexpired term, subject to the requirements set forth in Section 2.53.050. A member shall hold office until his or her successor has been appointed. A successor appointed to complete an unexpired term shall be eligible to serve up to two consecutive terms in addition to the unexpired term. (Ord. 2001-050 § 1 (part)) 2.53.070 Organization and procedures of the commission. At its first meeting, and annually thereafter, the commission shall elect a commission chairperson and a vice chairperson, who each shall hold office at the pleasure of the commission. When there is a vacancy in the office of chairperson or vice chairperson, the commission shall fill that office from among its members. The commission may adopt rules and procedures for the conduct of its business and may do any other thing necessary or proper to carry out its functions, which may include the formation of one or more committees. Staff support to the commission shall be provided by one or more city employees designated by the Sacramento city manager or his or her authorized representative. (Ord. 2001-050 § 1 (part)) Huntington Beach, California Page 10 Item 8. - 19 HB -302- 2.53.080 Commission meetings. The commission shall establish a time and place for regular meetings to be held not less than once each month, which shall be noticed and held in accordance with the provisions of the Ralph M. Brown Act (Government Code Sections 54950 et seq.). The commission shall have the authority to notice and hold special meetings in the manner specified by the Ralph M. Brown Act. (Ord. 2001-050 § 1 (part)) 2.53.090 Quorum—Voting. A quorum shall be required for the commission to take any action. A quorum shall be five members. However, in the event of any vacancy or vacancies, the quorum shall be a majority of the members then serving on the commission. The affirmative vote of a majority of the members present and voting shall be necessary to approve any item. (Ord. 2001-050 § 1 (part)) 2.53.110 General requirements. Unless specifically provided otherwise in this chapter, the general requirements set forth in Chapter 2.40 of this code, governing the appointment of board and commission members, attendance at board and commission meetings, voting, term limits and removal shall apply to the commission. A member is subject to removal for good cause, neglect of duty or misconduct as provided in city Charter Section 232. (Ord. 2001-050 § 1 (part)) 2.53.120 Conflict of interest—Statements of economic interests. The provisions of Article III of Chapter 2.16 of this code governing conflicts of interest of board and commission members shall apply to the members of the commission. In addition, all appointees to the commission shall be required to file statements of economic interests pursuant to a conflict of interest code to be adopted for the commission. (Ord. 2001-050 § 1 (part)) r Long Beach, CA Municipal Code—Citizen's Advisory Commission on Disabilities Link to Municipal Code: http://]ibrary.municode.com/index.aspx?clientld=16115 Chapter 2.33 CITIZEN'S ADVISORY COMMISSION ON DISABILITIES 2.33.010 Created. There is created a commission to be known and designated as the citizens' advisory commission on disabilities. 2.33 020„ NIe bO s. The citizens' advisory commdNon on disabilities shall consi'A-pof nin (9) members S- ) f the members shall be citizens &m' the city, and the remaining three ) members shall representatives from public and p NMI rivate fag ncies wh, h provide s rvice� to disabled �tlzens in the city. As uWi' tl is-icha ter the term disabled.. erson means a ersc�n havirlg a physical o mental impairment which substanf ally li3: such perso�&6m #unctic�ning o e (1) major life. activity c�r::more or person who has a record=of such impairment,�who is regarded as having such an iimpair� ent. As used n this chapter, razor life`activity means any oriental or physical � E i 1 1-em lQ e_ hou In . fun �zon or activity which, if impaired,,creates a substantial barrier p y g Huntington Beach, California Page 11 HB -303- Item 8. - 20 reefd, ion,transportation,health service,,or ether , tl�e activity as identified ed by omm Rs" 2.33.030 - Duties. The duties of the commission shall be as follows: A. To act in an advisory capacity to the mayor, city council and city manager or their designated representatives on specific topics requiring input in dealing with concerns and/or issues affecting people with disabilities. B. To assemble and disseminate to the mayor, city council, city manager and the agencies which serve people with disabilities, information on issues affecting people with disabilities in the pursuit of employment, health services, housing, transportation, recreation, and other life activities as identified by the commission. C. To act on its own initiative to make recommendations to the mayor, city council and city manager on corrective measures designed to eradicate artificial barriers to a full and productive life for people with disabilities. D. To act to facilitate coordination, cooperation and communication between existing and proposed services for people with disabilities. E. To carry out such studies as may be assigned to it by the mayor, city council and city manager and which are accompanied by adequate city resources and support. F. To provide expertise on issues affecting people with disabilities as requested by the various departments of the city, with the approval of the mayor, city council and/or the city manager. G. To report, from time to time, to the mayor, city council and city manager its findings. Nothing herein contained shall be construed as investing the commission, or any member thereof, with supervisory powers over the actions or duties of city employees or the operations of city departments. Huntington Beach, California Page 12 Item 8. - 21 HB -304- TITLE 3: REVENUE AND FINANCE Chapter 3.02 Purchase of Goods and Services Note: The City may wish to consider defining what is a"reasonable time" as is referenced in HBMC § 3.02.200. Chapter 3.20 Documentary 'Transfer Tax Notes: 1. The City may increase the amount of the imposed rate stated in HBC §3.20.020 from the current stated rate of twenty-seven and one-half cents ($0.27.5) for each five hundred dollars ($500.00) or fractional part thereof to fifty-five cents ($0.55) for each five hundred dollars ($500.00) or fractional part thereof pursuant to Revenue and Taxation Code §11911(a). 2. In HBMC §3.20.040 it appears that the City has not codified all of the exemptions provided by Revenue and Taxation Code §§11926 through 11930 including the following: ➢ Deed in lieu of foreclosure(11926); ➢ Transfer under dissolution of marriage (11927); ➢ Certain agreements to reconvey (11928); and ➢ Certain nonprofit organizations (11929) and inter vivos gifts or death (11930). We recommend that the City amend this section to include these exemptions. Chapter 3.24 Uniform Local Sales and Use Tax Note: HBC §3.24.020 authorizes a one percent sales and use tax. The City may wish to increase this amount in accordance with state law. See Revenue and Taxation Code §§6051 through 6055. Chapter 3.36 Utilities Tax Note: The City may wish to consider increasing the amount of the fine in HBMC §3.36.250(g) to one thousand dollars ($1,000.00) in accordance with Government Code §36901. Huntington Beach, California Page 13 HB -305- Item 8. - 22 TITLE 4: (RESERVED) Huntington Beach, California Page 14 Item 8. - 23 HB -3306- TITLE 5: BUSINESS LICENSES AND REGULATIONS Chapter 5.28 Dance Halls Notes: 1. HBMC §5.28.012(h) requires an applicant to possess good moral character and be a proper person to conduct such a business. (See also HBMC § 5.60.080). The terms "good moral character" and"proper person" are not defined anywhere in the Code. They are, as written, vague and subjective which may leave the City open to challenge on these issues. The City could, if they wanted to offer some guidance, use the phrase and give some examples, as in the following: "Good moral character" includes, but is not limited to traits of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws of the state and the nation and respect for the rights of others and for the judicial process. If the City included a more objective definition of"good moral character," it may then consider deleting reference to "proper person." 2. The City has not defined "dance hall" in this Chapter. Other California cities have defined the term, including: • Dance Hall. The term"dance hall" shall mean a place open to the public upon payment of an admission fee where music is provided and people are allowed to dance. (Newport Beach) • "Dance hall" is a place where dancing is conducted, either for profit or not for profit, and to which the public is admitted, either with or without charge, or at which the public is allowed to participate in the dancing, either with or without charge. (Laguna Beach) Chapter 5.34 Gasoline Pricing Note: The City may increase the amount of the fine referenced in HBMC §5.34.040 from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) consistent with California Government Code §36901. Chapter 5.44 Entertainment Permits Note: The City may wish to consider providing more objective terms for the revocation and/or suspension of a permit pursuant to HBMC §5.44.110(b) which currently allows for revocation and/or suspension if the entertainment is "detrimental to the public welfare." The phrase as written is vague, subjective and potentially overly broad which may open the City to legal challenge. Huntington Beach, California Page 15 1113 -307- Item 8. - 24 Chapter 5.50 Mobile Vending Chapter 5.54 Commercial Photography Chapter 5.66 Police-Directed Motor Vehicle Towing Service Chapter 5.71 Escort Service Note: The City may wish to increase the penalty amounts listed in the above-referenced chapters from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) in accordance with California Government Code §36901. See HBMC §§5.50.200, 5.54.090, 5.66.310 and 5.71.210(A). Huntington Beach, California Page 16 Item 8. - 25 HB -308- TITLE 6: (RESERVED) Huntington Beach, California Page 17 HB -309- Item 8. - 26 TITLE 7: ANIMALS Chapter 7.04 Adoption of County Ordinances Chapter 7.08 Licensing Provisions Note: The City may wish to increase the amount of the penalty from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) in the above-referenced chapters in accordance with California Government Code §36901. See HBMC §§7.04.010 and 7.08.120. Huntington Beach, California Page 18 Item 8. - 27 HB -310- TITLE 8: HEALTH AND SAFETY Chapter 8.12 Fly Control Chapter 8.24 Dust-Industrial Waste Chapter 8.44 Vehicles and Motorcycles Note: The City may wish to consider increasing the amount of the penalty in each of the above- referenced Chapters to one thousand dollars ($1,000.00) as well as increasing the jail time to six months in accordance with California Government Code §36901. See HBMC §§8.12.040, 8.12.120, 8.24.100, and 8.44.080. Chapter 8.42 Use of Police Services at Loud Parties or Other Activities Chapter 8.44 Vehicles and Motorcycles Note: The City may wish to consider expanding its discussion of the appeal process in HBMC §§8.42.050, 8.44.060 and 8.44.070 consistent with its practice in other sections of the Code. See for example HBMC §2.111.0300) for a good example of a notice and appeals hearing process. Chapter 8.75 Street Performers Note: The City may wish to consider adding a subsection specifying the violations or penalties after HBMC §8.75.030. Huntington Beach, California Page 19 HB -311- Item 8. - 28 TITLE LE 7: PUBLIC BLIC PEACE, MORALS AND WELFARE LFARE Chapter 9.06 Prohibited Activities Note: The City may wish to increase the amount of the monetary fine provided for in HBMC § 9.06.050 (Penalty-Misdemeanor) from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) consistent with Government Code §36901. Chapter 9.08 Smoking Prohibited Note: The City may wish to revise the infraction penalties stated in HBMC §9.08.140 (Violation—Penalty) consistent with Government Code §36900(b). Chapter 9.20 Prohibited Public Conduct Note: The City may wish to increase the amount of the fine provided for in HBMC §9.20.030 from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) consistent with Government Code §36901. Chapter 9.28 Pinball Machines Notes: 1. The state gaming laws are codified at California Penal Code §§330-337z. The City may want to review this chapter in light of current gaming laws and determine if they still wish to regulate pinball machines. We note that it appears that this chapter was first enacted in 1959. Current law prohibits certain activities in connection with a"slot machine or device" (defined in Penal Code §330b(d)). Pinball machines are specifically excluded from this definition (see Penal Code §330b(f)) and are characterized as "predominantly games of skill" whether or not there is an opportunity for additional changes or free plays. 2. The City may wish to increase the amount of the fines provided for in HBMC §§9.28.010 and 9.28.080 from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) consistent with Government Code §36901. Chapter 9.32 Pool & Billiard Falls Notes: 1. HBMC §9.32.030 (Permit Council grants or denies) uses the term"proper person" in describing who may be licensed for a proposed pool and billiard hall business. The term is vague and subjective. As such, it may potentially expose the City to unintended liability. The City may wish to consider revising this section to eliminate the subject phrase "proper person." Huntington Beach, California Page 20 Item 8. - 29 HB -312- 2. HBMC §9.32.110 (Permit—Revocation) does not specify how notice of the permit revocation may be issued or when it is effective. The City may wish to revise this section to include those details. 3. HBMC §9.32.120 (Permit—Revocation—Appeal) does not specify a detailed appeal process. The City may wish to consider to revise this section to provide more detail. In addition, query whether the reference to §9.32.100 should be revised to reference §9.32.110. Chapter 9.40 Inhaling Certain Substances Note: The City may wish to increase the amount of the penalty provided for in HBMC §9.40.030 (Violation—Penalty) from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) in accordance with Government Code §36901. Chapter 9.54 Sleepinjj in Vehicles Note: HBMC §9.54.010 (Unlawful during certain hours) prohibits any person from sleeping in any vehicle parked in any public place in the city between the hours of 9:00 p.m. of one day and 9:00 a.m. of the next day. This section may potentially open the City up to legal challenge, though the area of the law is not definitive in its guidance. The City may wish to consider consulting with its City Attorney for legal review and analysis of the issue in deciding how it may wish to modify this section, if at all. What follows below is a brief review of some of the potential legal issues involved with City ordinance bans on sleeping in vehicles in public. Sleeping is generally not a protected First Amendment activity and"government can constitutionally prohibit sleeping in public areas as part of its broad police powers." [People v. Davenport, 176 California App. 3d Supp. 10, 222 California Rptr. 736 (California Super. 1985), cert. denied, 475 U.S. 1141 (1986) (relying on Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984))]. We note, however, that Clark did not clearly address prohibitions on sleeping in all public areas, only the ability of the Park Service to prohibit overnight sleeping in a National Park. While city parks may be closed to all persons during certain hours, city streets may not. Thus, it does not appear that Clark provides unassailable authority for whether a city may prohibit sleeping in a car lawfully parked on a public street. Government can prohibit activities such as camping or storing personal property in public places because such activities create unsanitary nuisances and/or hinder use of the public property by others [Tobe v. Santa Ana, 9 California 4th 1069, 40 California Rptr. 2d 402, 892 P.2d 1145 (1995)]. An ordinance prohibiting sleeping on sidewalks in the downtown business district during business hours was not facially invalid because cities have the power to prevent interference with the passage of pedestrians [Roulette v. City of Seattle, 78 F.3d 1425 (9th Cir. 1996)]. However, whether a city can prohibit an otherwise innocent act such as sleeping, when it occurs in a lawfully parked car and thus neither hinders the use of public property nor obstructs pedestrians, may fall at the intersection of two lines of legal analyses. Some courts have upheld Huntington Beach, California Page 21 HB -313- Item 8. - 30 ordinances prohibiting sleeping in automobiles. See U.S. v. Hogue, 752 F.2d 1503 (9ti' Cir. 1985); Whiting v. Town of Westerly, 942 F.2d 18 (1st Cir. 1991). Another line of authority appears to disfavor such ordinances because they criminalize otherwise inoffensive conduct, which homeless people have no choice but to perform in public, thus constituting cruel and unusual treatment. See Pottinger v. City of Miami, 810 F.Supp. 1551 (S.D. Fla 1992) (relying on Robinson v. California, 370 U.S. 660 (1962)), remanded for clarification of injunction only, 40 F.3d 1155 (11" Cir. 1994). See also City of Pompano Beach v. Capalbo, 455 So. 2d 468, 470-71 (Fla. 4th DCA 1984), [**82] cert. denied, 474 U.S. 824, 88 L. Ed. 2d 65, 106 S. Ct. 80 (1985) (holding ordinance prohibiting sleeping in cars to be unconstitutionally overbroad because it criminalized conduct which could not conceivably have been criminal in purpose or effect); Hershey v. City of Clearwater, 834 F.2d 937 (11th Cir. 1987) (finding city ordinance prohibiting lodging and sleeping in motor vehicles in public areas not unconstitutionally overbroad or vague after prohibition against sleeping stricken from ordinance). In sum, while it appears that California courts have upheld ordinances that prohibit sleeping in cars in public areas, the City may wish to conduct further review into the issue and carefully monitor this area of law should the Supreme Court decide to resolve the apparent split between the Circuits. This may potentially occur soon given the current Occupy Protests taking place across the country. Chapter 9.80 Concealed Weapons Note: The City may wish to consult the City Attorney for legal review of this chapter to evaluate whether this chapter is preempted by state law that governs the regulation and registration of licensing of commercially manufactured firearms. See Government Code §§53071 and 53071.5. Chapter 9.84 Alcohol Use Permit Notes: 1. HBMC §9.84.040 (Restriction on permits) states: "No such permit shall be issued to a person who is not of good character or reputation in the community in which he resides." The phrase "good character or reputation in the community" is vague and subjective. Please refer to the discussion in Title 5 addressing a similar issue. 2. HBMC §9.84.070(c) (Requirements) provides for rates for extra labor costs for certain City personnel. Query whether these rates remain current. We note that this section was enacted in 1976. Huntington Beach, California Page 22 Item 8. - 31 HB -314- Chapter 9.86 Narcotic Paraphernalia Note: Health and Safety Code §§11364.5 and 11365.7, regulating drug paraphernalia, have preempted the regulatory field to the exclusion of local legislation. See A&B Cattle Co. of Nevada, Inc. v. City of Escondido, 238 California Rptr. 580, 192 California App. 3d 1032 (App. 4 Dist. 1987). We suggest that the City consult with the City Attorney for legal review and analysis in deciding whether to repeal this chapter. Huntington Beach, California Page 23 HB -315- Item 8. - 32 TITLE 10: VEHICLES AND TRAFFIC Chapter 10.32 Movement of Overloads Note: Query whether the rates stated in HBMC §10.32.160 are current. Chapter 10.84 Bicycle Regulations Note: The City may wish to consider increasing the infraction amounts provided in HBMC §10.84.280 in accordance with California Government Code §36900(b) (providing one hundred dollar($100.00) fine for first violation, two hundred dollars ($200.00) for second violation within a year and five hundred dollars ($500.00) for each violation thereafter in the same year). Huntington Beach, California Page 24 Item 8. - 33 HB -316- TITLE 11: (RESERVED) Huntington Beach, California Page 25 1413 -317- Item 8. - 34 TITLE 12: STREETS AND SIDEWALKS Chapter 12.13 Street Work Generally Note: HBMC §12.13.020 references the case entitled Sprint Technology PCS v. County of San Diego. The Ninth Circuit Court of Appeals has issued a decision on the case in Sprint Telephony PS v. County of San Diego, 543 F.3d 571 (9t" Cir. 2008). We have attached the decision to this review for the City Attorney's consideration in updating and revising this section. Huntington Beach, California Page 26 Item 8. - 35 HB -318- TITLE 13: PUBLIC PROPERTY Chapter 13.08 Beach Regulations Notes: 1. HBMC §13.08.110(c) discussing the revocation or suspension of alcoholic beverage permits relies upon the phrase "moral turpitude" as grounds for revocation or suspension of the permit. The term as written is vague and subjective. A helpful article discussing crimes involving moral turpitude under CA law can be found at: http://www.shouselaw.com/moral- turpitude.html. In this article, the author stated: "As far as principles go, we can see that CIMT [crimes involving moral turpitude] are generally intent crimes involving dishonesty or fraud, or other reprehensible, antisocial behavior that harms and/or corrupts others." The City may wish to consider adopting this or a similar definition of"moral turpitude" in the Code. 2. The City may wish to consider increase the amount of the violation in HBMC §13.08.370 from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) in accordance with California Government Code §36901. Chapter 13.28 Camper Facilities Note: The City may wish to consider increase the amount of the violation in HBMC §13.28.340 from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) in accordance with California Government Code §36901. Chapter 13.32 Harbors Generally Notes: 1. HBMC §13.32.080 (Permit—Denial—Appeal) does not contain details regarding the appeal process. The City may wish to consider elaborating upon the specifics of the appeal process including things such as whether or not the rules of evidence will apply, the level of review (e.g., de novo), whether or not the appellant may call witnesses and/or cross-examine witnesses, whether or not the decision of the City Council is final or may be subject to further appeal, time period for when the City Council will issue its decision and how notice of the decision will be made to the appellant, etc. 2. HBMC §13.32.100 (Revocation or suspension) describes the Director's right to revoke or suspend a permit after five days prior written notice to the permittee and the grounds upon which the revocation or suspension may be made. It does not, however, state whether a permittee has the right to appeal the revocation or suspension of the permit and if that right exists, to whom it shall be made, the timeline for appealing, and the process for how to submit an appeal. The City may wish to consider revising this section or adding a new section discussing appeal rights. If there are no appeal rights for revocations or suspensions, after City Attorney review and approval, then the City may wish to insert a sentence in this section to that effect. Huntington Beach, California Page 27 1413 -319- Item 8. - 36 Chapter 13.48 Parks Notes: 1. HBMC §13.48.080 (Boisterous conduct) prohibits a person from maliciously or willfully disturbing the peace or quiet of a park or of any person therein by"indulging in riotous, boisterous, threatening, indecent or offensive conduct" among other things. The definitions are subjective and may potentially be subject to First Amendment challenges. The City may wish to include a severability clause in this chapter and/or add language to this section stating something to the effect"that is not protected First Amendment speech or conduct." 2. The City may increase the amount of the penalty stated in HBMC §13.48.150 from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) consistent with Government Code §36901. Chapter 13.50 Regulation of'frees Notes: 1. The City may wish to consider adding a sentence to the end of HBMC §13.50.160 stating that failure to timely file an appeal waives the right to appeal and renders the Director's decision final. 2. The City may also wish to consider adding more details regarding the appeal process in HBMC §13,50.170 including, for example, what types of evidence will be considered, whether or not hearsay will be admitted, the timeframe for a decision by the City Council and how it will be issued to the appellant. Chapter 13.54 Special Events Note: HBMC §13.54.030 requires applicants seeking special event permits to file an application with the Director"not less than ninety(90) days nor more than two years"before the proposed date of the event. This time frame may be subject to constitutional challenge. Special event permit requirements are prior restraints on speech and thus are subject to strict scrutiny. Such ordinances must contain"narrow, objective and definite standards to guide the licensing authority." Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 (1969). The Ninth Circuit has held notices of three days or less are constitutional. See generally Santa Monica Food Not Bombs v. Town of Santa Monica, 450 F.3d 1022 (91h Cir. 2006) (holding a three-day notice period constitutional). More recently, the Ninth Circuit has held in its decision in Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 2009 U.S. App. (9th Cir. California 2009), that requiring 24-hour advance notice for a"spontaneous event"was unconstitutional. The Court stated that the notice period was not categorically unconstitutional, but it may be so depending on the facts. Spontaneous events are defined as those involving expressive activity occasioned by news or affairs coming into the public knowledge within 5 days of a parade, assembly or demonstration. Huntington Beach, California Page 28 Item 8. - 37 HB -320- In light of the discussion above, we recommend that the City consult with its City Attorney for legal review and analysis of the issues. As part of its evaluation with the City Attorney,the City may wish to consider adding a severability/savings clause to this chapter. In addition, it may also wish to add language to HBMC §13.54.030 providing something to the effect of the following language: "Notwithstanding the foregoing requirements, the Director may waive the time limits contained herein for noncommercial activity involving freedom of speech whenever necessary to protect First Amendment rights." Huntington Beach, California Page 29 HB -321- Item 8. - 38 TITLE 14: WATER AND SEWERS Chapter 14.24 Water Pollution Note: There are several sections in this chapter that reference the "Board of Supervisors." Query to the City whether this should be changed to reference the City Council. See e.g., HBMC §§14.24.180 through 14.24.200. Huntington Beach, California Page 30 Item 8. - 39 HB -322- "ITI'LE 15: ®IL Chapter 15.32 Nonproduein2 and Idle Wells Note: The City may wish to consider adding the amount of potential fine ($1,000.00) and imprisonment(up to six months) to HBMC §15.32.030 (Production report—False) which references that a false report is a misdemeanor. The stated penalty amount and potential imprisonment time is consistent with California Government Code §36901. Huntington Beach, California Page 31 HB -323- Item 8. - 40 TITLE 16: (RESERVED) Huntington Beach, California Page 32 Item 8. - 41 HB -324- TITLE 17: BUILDINGS AND CONSTRUCTION Chapter 17.05 Grading and Excavation Code Notes: 1. The City may wish to consider increasing the amount of the fine stated in HBMC § 17.05.110 (Violations and Penalties) from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) in accordance with Government Code §36901. 2. The City may wish to include more details of the appeal process in HBMC §17.05.120 (e)(2) (Appeal). Good examples of sections discussing appeal processes may be found in HBMC §§17.10.052 and 17.10.053. Chapter 17.10 Huntington Beach Nuisance Code Note: The City may wish to include the amount of the penalties and/or imprisonment time in HBMC §17.10.060 (Violations) either by including another subsection(d) to this section, or by adding in the amounts at the end of each of the subsections (a) through (c). For an example of the first approach, see HBMC §17.58.160. Chapter 17.58 Hazardous Materials Note: The City may wish to consider increasing the amount of the monetary fine stated in HBMC §17.58.160(d) from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) consistent with Government Code §36901. Chapter 17.66 Library Development Fee Note: The City may wish to consider adding in more details on the appeal process provided in HBMC §17.66.060(c) (Appeal). See HBMC §17.10.053 for a good example of a detailed appeal process. Huntington Beach, California Page 33 HB -325- Item 8. - 42 TITLE 18: (RESERVED) Huntington Beach, California Page 34 Item 8. - 43 HB -326- TITLE 19: (RESERVED) Huntington Beach, California Page 35 HB -327- Item 8. - 44 TITLE 20: ZONING AND SUBDIVISION-GENERAL PROVISIONS After a thorough review of this title, there are no significant issues of note. Huntington Beach, California Page 36 Item 8. - 45 HB -328- TITLE 21: EASE DISTRICTS After a thorough review of this title, there are no significant issues of note. Huntington Beach, California Page 37 HB -329- Item 8. - 46 TITLE 22: OVERLAY DISTRICTS After a thorough review of this title, there are no significant issues of note. Huntington Beach,California Page 38 Item 8. - 47 HB -330- TITLE 23: PROVISIONS APPLYING Ili ALL OR SEVERAL DISTRICTS After a thorough review of this Title, there are no significant issues of note. Huntington Beach, California Page 39 HB -331- Item 8. - 48 TITLE 24: ADMINISTRATION Chapter 249 Enforcement Note: The City may wish to consider increasing the amount of the fine provided for in HBMC §249.08(A) from five hundred dollars ($500.00) to one thousand dollars ($1,000.00) consistent with Government Code §36901. Huntington Beach, California Page 40 Item 8. - 49 HB -332- TITLE 25: SUBDIVISIONS After a thorough review of this Title, there are no significant issues of note. Huntington Beach, California Page 41 HB -333- Item 8. - 50 ATTAC H M E N T #3